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Originalism: Erasing Women from the Body Politic
Get PDFIn Dobbs v. Jackson Women\u27s Health, the Court relied on originalism to excise women from the Constitution. Originalism is purposefully backward-looking. With cherry-picked history, the Court created a future that looks to the past: a past where unwed pregnancy is shameful and can be redeemed only by secret adoption. Yet the case has revealed originalism as a flawed method, harmed the legitimacy of the Court, and energized those supporting abortion rights
Confidentiality Clauses in Settlement Agreements After the Consumer Review Fairness Act
Get PDFOnline commerce has skyrocketed in recent years, and shoppers are purchasing goods or services online in greater numbers every year. The COVID-19 pandemic has only hastened the trend. One significant aspect of online shopping is the presence of consumer reviews posted by prior purchasers of goods or services, describing their experience with the products, the services and/or the selling merchant. A vast majority of online shoppers say that they rely on these reviews to help inform their purchasing decisions. Positive reviews can be tremendously beneficial to a business’ profitability, whereas negative reviews can be equally detrimental. Users of the internet can tend to be unrestrained and vitriolic online, due to the online disinhibition effect—and this is no less the case in the world of online reviews. Therefore, businesses have every incentive to seek to minimize the damage that these negative, sometimes even “troll-like,” reviews can inflict on them. Although some businesses sought for a time to include provisions in their form purchase contracts, entered into at the inception of the transactional relationship, that precluded consumers from posting reviews (non-disparagement clauses, or confidentiality provisions), Congress put an end to the practice with the Consumer Review Fairness Act (CRFA) (along with some states). However, although the CRFA now prohibits merchants from banning consumer reviews in their initial form purchase contracts, this Article asserts that the CRFA should not be read to limit merchants’ ability to include a non-disparagement or confidentiality clause in a settlement agreement whose purpose is to fully and finally resolve any dispute between the consumer and the merchant. The text of the CRFA only applies to form contracts entered into “in the course of selling goods or services,” and this does not apply to settlement agreements. Moreover, important rationales exist for distinguishing between initial form purchase contracts, and settlement agreements: (1) allowing confidentiality agreements encourages settlement, which is highly favored, (2) confidentiality and non-disparagement provisions are broadly used and enforced in the settlement context more generally, (3) important differences in context and general enforceability of limitations exist between the initial form purchase contract and the settlement agreement, and (4) merchants should be allowed to include, within a resolution of all disputes, a provision that addresses their concern that a disgruntled customer may evade the spirit of full resolution by inflicting post-settlement damage in the form of a negative review
Outside Inside
Get PDF“Outsider scholarship,” we hear, “is characterized by a commitment to the interests of people of color and/or women, by rejection of abstraction and dispassionate ‘objectivity,’ and by a preference for narrative and other engaged forms of discourse.” Off the bat, we think: “Delgado!”, “Rodrigo!” Rightly, we raise our hats and cheer
Diversity, Inclusion, and Equity in the Engineering Curriculum: Evaluating the Efficacy of a New Teaching Module
No full textCurrent diversity and sexual harassment trainings often take an informative approach that results in a gap between theoretical knowledge and practical resolutions of ethical dilemmas. Available research suggests that diversity training programs often elicit the greatest amount of change among people with a minority identity and can result in hostility from majority group members. To better prepare all engineering students for modern-day organizations, it’s imperative that universities develop effective approaches at the student level to mitigate these discrepancies. We propose that our novel ethics-based training will elicit positive diversity-related outcomes overall. We inductively explore the differential impact of diversity training across majority and minority identities. Longitudinal quantitative data were collected to examine changes in participant attitudes and behaviors in response to the diversity module. Undergraduate engineering students enrolled in an introductory engineering ethics course at a large Southwestern university were presented with a week-long teaching module on diversity. Survey results were evaluated to measure differences in effectiveness among majority and minority students. The diversity training successfully decreased levels of sexism, acceptance of sexual harassment myths, and increased intentions to confront discrimination. Differences in outcome variables between majority and minority members were found with regard to political orientation, race, and physical and mental disability status. Overall, this study presents a promising new avenue for diversity training scholarship. Specifically, we find that an ethics-based approach to diversity training may be particularly effective for majority group students
Redaction
No full textMacArthur fellows Reginald Dwayne Betts and Titus Kaphar present a stunning literary and artistic collaboration that confronts the abuses of the criminal justice system. Throughout their award-winning careers, visual artist and filmmaker Titus Kaphar and poet, memoirist, and attorney Reginald Dwayne Betts have shed light on the violences of incarceration and the underexplored contradictions of American history. In Redaction, they unite their different mediums to expose the ways the legal system exploits and erases the poor and incarcerated from public consciousness. First exhibited at MoMA PS1, the fifty Redaction prints layer Kaphar\u27s etched portraits of incarcerated individuals with Betts\u27s poetry, which uses the legal strategy of redaction to craft verse out of legal documents. Three prints are broken apart into their distinct layers, illuminating how the pair manipulated traditional engraving, printing, poetic, and redaction processes to reveal what is often concealed. This beautifully designed volume also includes additional artwork, poetry, and an introduction by MoMA associate director Sarah Suzuki. The result is an astonishing, powerful exploration of history, incarceration, and race in America.https://scholarship.law.tamu.edu/poetry-month-2025-works/1004/thumbnail.jp
Immigration Law\u27s Missing Presumption
Get PDFThe presumption of innocence is a foundational concept in criminal law but is completely missing from quasi-criminal immigration proceedings. This Article explores the relevance of a presumption of innocence to removal proceedings, arguing that immigration law has been designed and interpreted in ways that disrupt formulating any such presumption to facilitate deportation. The Article examines the meaning of “innocence” in the immigration context, revealing how historically racialized perceptions of guilt eroded the notion of innocence early on and connecting the missing presumption to persistent associations between people of color and guilt. By analyzing how a presumption of innocence is impeded at multiple decision points, from the investigations stage to detention, removal, and even post-conviction relief, the Article demonstrates the cumulative disadvantage that the system inflicts. Finally, the Article argues that immigration law not only is missing its own presumption of innocence but also erodes the presumption of innocence in criminal law. The Article offers three examples of this phenomenon involving immigration law’s treatment of pending charges, untested arrest reports, and unproven facts related to a crime. By shedding light on how immigration law undermines a presumption of innocence and reinforces racialized perceptions of guilt, this Article reveals a form of covert racial discrimination in the immigration code
Delgado Replies
Get PDFIn Outside Inside, Frank Michelman gives me a pat on the back for two articles setting out the case for a rotten social background (“RSB”) defense. Ultimately, however, my efforts, in his eyes, at best amount to the proverbial good old college try. Because of a host of “establishment concerns,” mainstream judges will shy away from it, even in the most compelling cases. Unless criminal defendants qualify for an accepted defense such as insanity or diminished capacity, judges will see a severely deficient childhood as bearing only on the morality of punishment, not its legality
Comparing & Contrasting Economic and Natural Law Approaches to Policymaking
Get PDFEric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap in Claeys’s book is its failure to acknowledge and analyze the modern law of nuisance with its enriched set of remedies capable of making everyone a winner. At a macro level, Claeys (like most other natural law theorists) offers no substantive case against redistribution as an optimal method for addressing the fact that charity is a public good. The book, again in keeping with the natural law tradition, eschews any serious empiricism—indeed not a single argument it makes contains any empirical support. This is a fatal flaw for anyone with the ambition to offer practical advice on tougher property law issues for which the right answers depend on myriad social parameters whose values lie beyond the reach of deduction
The Natural Right of Property
Get PDFThis Article offers a critical examination of Eric Claeys’s argument for natural property rights, focusing in particular on the questions of self-ownership and the so-called “Lockean proviso.” It argues that while Claeys is generally on the right track in his argument for natural property rights, he errs in omitting a self-ownership argument, some version of which is necessary for a proper naturalistic account of property, and that the Lockean proviso is neither necessary for such an account nor defensible in its own right. I conclude that the concerns animating the Lockean proviso argument are adequately dealt with by an alternative argument: that one has a right to equal participation in an existing property rights scheme
The Matryoshka Model: Understanding the Relationship Between Delegation Provisions and the Broader Arbitration Agreements That Contain Them
Get PDFThis Note analyzes a 2021 decision in which a Ninth Circuit panel diverged from its sister circuits on whether an arbitrator may decide the enforceability of an arbitration agreement that excludes the application of federal law in the arbitration proceedings. In Brice v. Plain Green, LLC (Brice I), the Ninth Circuit panel considered several arbitration agreements that contained delegation provisions. A delegation provision is an additional agreement to arbitrate the validity, enforceability, or scope (collectively, “arbitrability issues”) of a broader arbitration agreement.
Analyzing the enforceability of the delegation provisions apart from that of the arbitration agreements, the panel compelled the plaintiffs to arbitrate their challenge to the enforceability of the arbitration agreements. In doing so, the panel examined the enforceability of the delegation provisions under the prospective-waiver doctrine, which prohibits an arbitration agreement from waiving a litigant’s right to pursue federal statutory remedies in arbitration. Finding that the delegation provisions did not themselves waive the plaintiffs’ right to pursue federal remedies, regardless of whether the arbitration agreements would have waived that right or not, the panel held that the delegation provisions were valid and enforceable. However, the Ninth Circuit vacated the opinion of the panel for a rehearing en banc. Shortly after, the parties reached a settlement agreement. Thus, the court dismissed the appeal as moot, leaving the panel’s decision vacated without adopting or rejecting its reasoning.
While Brice I currently stands vacated, future courts should readopt the panel’s approach if faced with a similar case. The Ninth Circuit panel correctly decided Brice I because its decision reflected a rigorously accurate application of Supreme Court precedent on the treatment of delegation provisions, properly fitting together the delegation provisions, arbitration agreements, and larger contracts in the case like matryoshka dolls (Russian nesting dolls). Likewise, the panel rightly declined to invalidate the delegation provisions in the case under the prospective-waiver doctrine. Regarding public policy, the panel’s decision placed delegation provisions on equal footing with other arbitration agreements and exercised appropriate restraint by refusing to extricate the plaintiffs from a disadvantageous agreement that they nevertheless agreed to.
This Note begins with a review of Brice I’s factual background and procedural posture, followed by a review of law relevant to the treatment of delegation provisions. Next, it offers an analogical defense of the Ninth Circuit panel’s approach in the face of contrary decisions by several of its sister circuits. Finally, this Note closes with an analysis of how the panel considered the specific delegation provisions in Brice I